The Champion

April 2003 , Page 45 

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Friend of the Court

By Lisa Kemler

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Does failure to investigate available mitigating evidence for possible use in penalty phase of death penalty case constitute ineffective assistance of counsel?

In Wiggins v. Smith, U.S., No. 02-311, cert. granted 11/18/02, a death penalty case, Kevin Wiggins was charged in Maryland state court with murder and robbery of an elderly woman, as well as burglary and theft. The defense opted for a bench trial on the issue of guilt believing that “Baltimore County juries are too ‘bent towards guilt’ and ‘death oriented.’” (Petitioner’s Br. at 4). The judge convicted Wiggins of murder, robbery and theft. Although there was no direct evidence of Wiggins’ participation in the murder or robbery, he had possession of the victim’s car and had used her credit cards subsequent to her death. In addition, Wiggins had worked as a painter in the victim’s apartment complex and had been seen near her apartment building on the afternoon before her death. The trial judge had disc

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